Correspondence from Lani Guinier to Elaine B. Goldsmith (Clerk) Re: Butts v. City of New York

    Record No. 5614

In  the

(flmirt af Appeals af Birrjima
at R ichmond

N. A. A. C. P. L egal D efense and 
E ducational F und, Incorporated,

Plaintiff in Error,
—v.—

Committee on Offenses A gainst the 
A dministration of Justice,

Defendant in Error.

FROM THE HUSTINGS COURT OF THE CITY OF RICHMOND

BRIEF FOR PLAINTIFF IN ERROR N. A. A. C. P. 
LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

L awrence Douglas W ilder 
3026 P Street 
Richmond, Virginia

J ack Greenberg 
James M. Nabrit, III  
M ichael M eltsner 
F rank H. H effron 

10 Columbus Circle 
New York 19, New York
Attorneys for Plaintiff in Error



I N D E X
PAGE

Statement of Material Proceedings ..............................  1

Errors Assigned.................................................................  3

Questions Involved.............................................................. 5

Statement of Facts ............................................................ 7

.Argument :

I. The Committee Is Not Authorized hy Law 
to Investigate the Matters Inquired Into by 
Interrogatory No. 1 ......................................  14

II. The Rights of the Legal Defense Fund and 
Its Contributors as Protected by the Due 
Process Clause of the Fourteenth Amend­
ment to the Constitution of the United 
States Are Infringed by the Failure of the 
Committee to Clearly State the Scope of 
Its Investigation and How Interrogatory 
No. 1 Is Pertinent to That Investigation .... 18

III. Compelled Disclosure of the Names and Ad­
dresses of the Fund’s Contributors Would 
Violate Their Rights to Freedom of Asso­
ciation and the Fund’s Property Rights as 
Protected by the Constitution of Virginia 
and the Constitution of the United States .... 20

IV. By Erroneously Excluding Evidence of the 
Injury Which Would Result to Plaintiff in 
Error and Its Contributors, the Trial Court 
Denied Rights Protected by the Fourteenth 
Amendment to the Constitution of the 
United States and the Virginia Constitution 31



11

V. The Statute Creating the Respondent Com­
mittee Serves an Impermissible Purpose 
and Violates the Due Process and Equal 
Protection Clauses of the Fourteenth 
Amendment ...................................................... 33

VI. The Exclusion of House Documents Nos. 8 
and 9 From Evidence Was Erroneous and 
in Violation of the Due Process and Equal 
Protection Clauses of the Fourteenth 
Amendment to the United States Constitu­
tion, as Denying the Legal Defense Fund 
the Opportunity to Prove the Improper 
Legislative Purpose ......................................  41

VII. The Committee’s Inquiry Arbitrarily Sin­
gles Out Contributors to the Legal Defense 
Fund and Similar Organizations for Tax 
Investigation in Violation of the Due Proc­
ess and Equal Protection Clauses of the 
Fourteenth Amendment to the United 
States Constitution ......................................  43

VIII. Compelled Disclosure to the Committee of 
the Names of the Fund’s Contributors 
Would Be Contrary to Representations 
Made to the United States Supreme Court 
in Harrison v. NAACP, 360 U. S. 167,
That Laws Compelling Similar Disclosures 
Would Not Be Enforced Until Their Con­
stitutionality Had Been Finally Determined 47

Conclusion .......................................................................................  50

PAGE

T able op Cases

Adkins v. School Board of the City of Newport News,
148 F. Supp. 430 (E. D. Va. 1957) ..............................  22

Bates v. Little Rock, 361 U. S. 516...........20, 21, 22, 26, 29, 33
Bolling v. Sharpe, 347 U. S. 497 ......................................  39



I ll

PAGE

Brown v. Board of Education, 347 U. S. 483 ...............33, 39
Burstyn, Inc. v. Wilson, 343 U. S. 495..............................  29

Currin v. Wallace, 306 U. S. 1 ......................................  39

Davis v. County School Board of Prince Edward
County, 347 U. S. 483 ....................................................  33

Detroit Bank v. United States, 317 U. S. 329 ................... 39
Deutck v. United States, 367 U. S. 456 ....................... 19

Gibson v. Florida Investigation Comm., 108 So. 2d
729, cert, denied 360 U. S. 919......................................  27

Gibson v. Florida Investigation Committee, 372 U. S.
539 ............................................................20,23,24,27,28,30

Graham v. Florida Legislative Investigation Commit­
tee, 126 So. 2d 133 ........................................................  27

Grosjean v. American Press Co., 297 U. S. 233 ............... 30

Harrison v. NAACP, 360 U. S. 167.............................. 21, 49

Kilbourn v. Thompson, 103 U. S. 168 ..........................  39

Lawrence v. State Tax Comm., 268 U. S. 276 ............... 33

McGrain v. Daugherty, 273 U. S. 135 ..........................  39

NAACP v. Alabama, 357 U. S. 449 ...................20, 21, 22, 32,
33, 38, 42, 49

NAACP v. Button, 371 U. S. 415 ...........16, 20, 22, 29, 34, 39
NAACP v. Harrison, 202 Va. 142, 116 S. E. 2d 55

(I960) ............................................... 16,20,27,34,43,45,49
NAACP v. Harrison (Cir. Ct. Richmond, Chancery 

No. B-2880, 1962), reported unofficially in 7 Race
Rel. L. Rep. 864, 1216 ...................................................... 34

NAACP Legal Defense and Educational Fund, Inc. v. 
Harrison (Circuit Ct. City of Richmond, Chancery 
No. B-2879, 1962), reported unofficially in 7 Race Rel.
L. Rep. 864, 1216 ................................................20, 23, 34, 49



IV

NAACP v. Patty, 159 P. Supp. 503 (E. D. Va. 1958), 
vacated on other grounds sub nom. Harrison v. 
NAACP, 360 U. S. 167 ......................................22, 29, 35, 47

Pennekamp v. State of Florida, 328 U. S. 331 ...........29, 34
Pierce v. Society of Sisters, 268 U. S. 510 ................... 29

Schneider v. State, 308 U. S. 147 ..................................  24
Scull v. Virginia, 359 U. S. 344 ..........................3,19, 22, 35
Shelton v. Tucker, 364 U. S. 479 .............................. 20, 22, 26
Smith v. California, 361 U. S. 147..................................  16
Speiser v. Randall, 357 U. S. 513 .................................. 40, 45
Steward Machine Co. v. Davis, 301 U. S. 548 ............... 39
Sweezy v. New Hampshire, 354 U. S. 234 ....................... 17

Talley v. California, 362 U. S. 60 .................................. 20, 23

Washington ex rel. Oregon R. & N. Co. v. Fairchild,
224 U. S. 510 ................................................................. 33? 42

Watkins v. United States, 364 U. S. 178 ...........17,19, 39, 40
Wieman v. Updegraff, 344 U. S. 183..............................  16
Williams v. Georgia, 349 U. S. 375 ..................................  42
Yick Wo v. Hopkins, 118 U. S. 356 (1886)....................... 44

Statutes I nvolved

Acts of Assembly, Extra Session, 1956:

Chapters 31, 32 .................................. 22, 23, 34, 47, 48, 49
Chapter 33 ......................................................16, 22, 34,41
Chapter 34 ............................................................._.„35, 36
Chapter 35 ........................................................... 22, 35, 41
Chapter 36 ......................................................16, 22, 27, 34
Chapter 37 ...................................................................  36

Chapters 68, 70, 71 ....................................................22, 34

PAGE



V

Code of Virginia:
Sections 18.1-372-18.1-387, 18.1-380-18.1-387 ..23, 47, 49 
Section 30-42 ...............3, 4, 9,11,14,15,18, 23, 37, 38, 39

PAGE

Sections 30-49, 30-50 .............................. 10, 25, 36, 37, 42
Section 58-84.1 ..............................................12, 40, 44, 45
Sections 58-110, 58-111 ..............................................  12

Constitution of Virginia, §§11, 12 .............................. 5, 20, 30
House Joint Resolution No. 50, 1958 General Assembly 42

Other A uthorities

14 Am. Jur., Courts, §243, et seq........................................  49
49 Am. Jur., States, etc., §42 ..........................................  17
5 Wigmore on Evidence, §1361..........................................  32
5 Wigmore on Evidence, §1609 ........................................  32



Record No. 5614

I n  the

(Emtrt of of Itajutta
at R ichmond

N. A. A. C. P. L egal D efense and 
E ducational F und, Incorporated,

Plaintiff in Error,
—v.—

Committee on Offenses A gainst the 
A dministration of Justice,

Defendant in Error.

FROM THE HUSTINGS COURT OF THE CITY OF RICHMOND

BRIEF FOR PLAINTIFF IN ERROR N. A. A. C. P. 
LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

Statement of Material Proceedings 
in the Lower Court

On May 25, 1961, defendant in error, Committee on Of­
fenses Against the Administration of Justice, hereinafter 
referred to as the Committee, sued out from the Clerk’s 
Office of the Hustings Court of the City of Richmond (1) 
a summons against National Association for the Advance­
ment of Colored People (NAACP), (2) a summons against 
Virginia State Conference of NAACP Branches (Confer­
ence) and (3) a summons against NAACP Legal Defense 
and Educational Fund, Inc. (Legal Defense Fund). Each 
summons directed the organization addressed, on or before 
June 23, 1961, to file with the clerk of the Committee sworn 
answers to certain interrogatories requiring, inter alia,



2

disclosure of names of donors of $25.00 or more to the or­
ganization. On June 23, 1961, the NAACP and the Con­
ference filed with the Clerk of said Hustings Court their 
joint Motion to Quash the summonses issued against them. 
On June 23, 1961, the Legal Defense Fund filed with the 
Clerk of said Hustings Court its Motion to Quash the 
summons issued against it, and, specifically, the interroga­
tory numbered one requiring the disclosure of names of 
donors, the other information required by the interroga­
tories addressed to the Legal Defense Fund having been 
furnished to the Committee.

These Motions to Quash were heard together by said 
Hustings Court on August 23 and 24, 1961. During the 
hearing the court excluded certain evidence offered by the 
movants, to which rulings exceptions were saved, and the 
court reserved its ruling on the admissibility of certain 
exhibits offered by the movants. By letter to counsel dated 
September 25, 1961, the court ruled that movants’ exhibits 
A  and B were inadmissible; and on October 10, 1961, the 
movants filed their exceptions to the exclusion of that evi­
dence.

By letter from the court dated May 17, 1962, counsel were 
advised of the court’s opinion, reached upon consideration 
of the evidence and the briefs of counsel, that the several 
motions to quash should be dismissed. By orders entered 
June 22, 1962, the motions to quash were denied and the 
movants were directed to provide to the Committee answers 
to the said interrogatories. Due exception to each order 
is noted therein and each order provides that its effect 
is suspended for a period of ninety days from the date 
of its entry and thereatfter until a petition for a writ of 
error filed within such ninety-day period is acted on by 
the Supreme Court of Appeals.

A petition for writ of error, filed by the Legal Defense 
Fund in this Court on September 20, 1962, was granted on 
December 3, 1962. A similar petition filed by the N. A. A. 
C. P. was also granted on the same date.



3

The Errors Assigned

1. The court erred in rejecting petitioner’s claim that 
the compulsory disclosure required by said interrogatory 
numbered 1 did not violate the rights of petitioner and its 
contributors to freedom of association and privacy of as­
sociation as protected by the Due Process Clause of the 
Fourteenth Amendment to the Constitution of the United 
States.

2. The court erred in ruling that the inquiry contained 
in said interrogatory numbered 1 was authorized by §30- 
42(b) of the Code of Virginia.

3. The court erred in rejecting petitioner’s claim that 
it had not been properly advised of the scope of the in­
vestigation and of the connective reasoning by which the 
said interrogatory numbered 1 is pertinent to the investiga­
tion, thus depriving petitioner of rights under the Due 
Process Clause of the Fourteenth Amendment to the Con­
stitution of the United States.

4. The court erred in excluding evidence offered by peti­
tioner tending to establish that the said interrogatory 
numbered 1 was a part of a program by the committee 
to subject petitioner and other organizations engaged in 
furthering desegregation to special burdens in order to 
deter persons from associating together to support litiga­
tion to challenge racial segregation practices. This ex­
cluded evidence was House Document No. 8 (marked for 
identification as Exhibit A ), House Document No. 9 
(marked for identification as Exhibit B), and also inquiry 
of the witness James Thomson concerning testimony given 
by him in Scull v. Virginia, 359 U. S. 344, 347 (1959) as 
recounted in the Supreme Court opinion in that case. The 
exclusion of this evidence denied petitioner due process of 
law as protected by the Fourteenth Amendment to the 
Constitution of the United States.



4

5. The court erred in excluding proffered evidence and 
in restricting questioning of witnesses W. Lester Banks 
and Thurgood Marshall concerning the harm to petitioner 
and the National Association for the Advancement of 
Colored People in their fund raising activities which re­
sulted from prior efforts by Virginia to compel disclosure 
of the names of members and contributors, and concerning 
the extent to which persons sympathetic with these or­
ganizations have indicated that they were afraid or un­
willing to be publicly identified as supporters of the 
organizations because of the controversial nature of their 
activities. The exclusion of this evidence denied petitioner 
due process of law as protected by the Fourteenth Amend­
ment to the Constitution of the United States.

6. The court erred in rejecting petitioner’s contention 
that the use of the Act creating the respondent committee, 
e.g., §§30-42 to 30-51 of the Code of Virginia, to compel 
the disclosures required by the interrogatory numbered 1, 
deprives petitioner and its contributors of equal protection 
of the laws in violation of the Fourteenth Amendment to 
the Constitution of the United States.

7. The court erred in declining to defer action on the said 
interrogatory numbered 1 until after final determination 
of the issue of whether such disclosures may be compelled 
in other pending litigation between petitioner and officers 
of the State of Virginia in which representations were made 
on behalf of the Attorney General of Virginia that State 
laws compelling these similar disclosures would not be 
enforced until their constitutionality had been finally deter­
mined.

8. The court erred in finding that the said interrogatory 
numbered 1 was propounded in aid of a legislative purpose 
which is not forbidden by the Due Process and Equal Pro­
tection Clauses of the Fourteenth Amendment to the Con­
stitution of the United States.



5

9. The court erred in finding that the disclosure sought 
will not result in loss of rights secured to petitioner by the 
Due Process Clause of the Fourteenth Amendment to the 
Constitution of the United States.

Questions Involved

I.

Whether the Committee is authorized by law to in­
vestigate the matter inquired into by Interrogatory No. 1.

II.

Whether the Committee has failed to clearly state the 
scope of its investigation and how the information sought 
is pertinent to the investigation in violation of the rights 
of the Legal Defense Fund and its contributors under the 
due process clause of the Fourteenth Amendment.

III.

Whether compelled disclosure of the names of con­
tributors to the Legal Defense Fund violates rights to free­
dom of association protected by Section 12 of the Consti­
tution of Virginia, and by the due process clause of the 
Fourteenth Amendment to the Constitution of the United 
States where the information sought bears little, if any, 
relevance to the stated purpose for which the information 
is sought; wdiere the state can accomplish its aims without 
invading freedom of association; and where the state has 
failed to connect the alleged evil under investigation with 
the Legal Defense Fund or its contributors.



6

IV.

Whether under the circumstances of this case compelled 
disclosure of the names of contributors violates the Legal 
Defense Fund’s property rights to foster and receive 
support for its purpose and program as secured by Section 
11 of the Constitution of Virginia, and by the due process 
clause of the Fourteenth Amendment to the United States 
Constitution.

V.

Whether the trial court erroneously, and in violation 
of the due process clause of the Fourteenth Amendment 
to the Constitution of the United States, excluded evidence 
showing that compelled disclosure of the information 
sought would visit harm upon the Legal Defense Fund 
and its contributors.

VI.

Whether the statute creating the Committee serves an 
impermissible legislative purpose in violation of the due 
process and equal protection clauses of the Fourteenth 
Amendment to the United States Constitution.

VII.

W7hether the exclusion of House Documents Nos. 8 and 
9 from evidence was erroneous, and in violation of the 
due process and equal protection clauses of the Fourteenth 
Amendment to the United States Constitution, as denying 
the Legal Defense Fund the opportunity to prove the im­
proper legislative purpose.



7

VIII.

Whether the Committee’s inquiry arbitrarily singles out 
contributors to the Legal Defense Fund and similar or­
ganizations for tax investigation in violation of the due 
process and equal protection clauses of the Fourteenth 
Amendment to the United States Constitution.

IX.

Whether principles of comity and equity require that 
Interrogatory No. 1 be quashed because of representations 
by Virginia officials to the United States Supreme Court 
that such information would not be required to be dis­
closed pending the completion of certain litigation in the 
state and federal courts.

Statement of Facts

NAACP Legal Defense and Educational Fund, Incor­
porated is a nonprofit membership corporation incorporated 
under the laws of the State of New York and duly author­
ized to function as a foreign corporation in the Common­
wealth of Virginia (R. 68-69, Exhibits D, E). It operates 
for the purposes of (a) rendering legal aid gratuitously 
to Negroes suffering legal injustices by reason of race or 
color, (b) promoting educational facilities for Negroes 
who are denied the same by reason of race or color, and 
(c) conducting research and publishing information con­
cerning educational facilities and opportunities for Negroes 
(Ibid.).

The Legal Defense Fund’s program is financed solely by 
voluntary contributions from individuals and organiza­
tions, in Virginia and elsewhere (R. 70-71), who, by their 
contributions, associate to concert their efforts and to



8

safeguard the interests of individual citizens against un­
constitutional color restrictions. Contributions to the Legal 
Defense Fund are deductible on federal income tax returns 
(R. 71).

The Fund operates with a “ staff in New York composed 
of lawyers and research people and some of the lawyers in 
other areas of the country for the sole purpose of rendering 
legal assistance . . . when called upon by either the in­
dividual or the individual’s lawyer where there is an ap­
parent discrimination because of race or color . . . ” (R. 70). 
The Fund no longer has a regional attorney stationed in 
Richmond, as it formerly did, and the extent of its work 
in Virginia is to cooperate with lawyers who have sought 
its legal assistance (R. 70). The Fund has no salaried 
employees in Virginia, and its only fund solicitation in the 
State has been by letter (R. 70-71).

NAACP was organized under the laws of the State of 
New York in or about the year 1911 as a “membership 
corporation” and registered with the State Corporation 
Commission of Virginia as a foreign corporation (R. 78). 
It has approximately ninety unincorporated branches in 
the State of Virginia which are under the control and 
general supervision of the national association, being gov­
erned by the national board of directors under policies 
promulgated by the annual convention of the units of the 
association (R. 78-79). The Conference is a voluntary un­
incorporated association of the branches chartered by 
NAACP in the State of Virginia (R. 79).

The basic aim and purpose of NAACP is to secure for 
American Negroes those rights guaranteed them by the 
Constitution and laws of the United States. In its Articles 
of Incorporation, its principal objectives are described as 
follows:

“ . . . voluntarily to promote equality of rights and 
eradicate caste or race prejudice among the citizens 
of the United States; to advance the interest of colored



9

citizens; to secure for them impartial suffrage; and 
to increase their opportunities for securing justice in 
the courts, education for their children, employment 
according to their ability, and complete equality before 
the law.

“ To ascertain and publish all facts bearing upon these 
subjects and to take any lawful action thereon; to­
gether with any and all things which may lawfully 
be done by a membership corporation organized under 
the laws of the State of New York for the further 
advancement of these objects” (R. 78).

The membership and fund raising campaigns of the 
NAACP and the Conference are materially assisted by the 
fact that these organizations encourage and give financial 
support to the conduct of litigation attacking racial dis­
crimination (R. 80-81). Neither organization represents 
itself as eligible to receive contributions which may be 
deducted from taxable income (R. 81).

Defendant in error, the Committee on Offenses Against 
the Administration of Justice, was created by the General 
Assembly in 1958. By Chapter 5 of Title 30 (§30-42 et seq.) 
of the Code of Virginia, it is directed to investigate the 
observance and enforcement of the laws of the Common­
wealth relating to the administration of justice with partic­
ular reference to the laws “ relating to champerty, main­
tenance, barratry, running and capping and other offenses 
of like nature relating to the promotion or support of 
litigation by persons who are not parties thereto” (§30- 
42(a)). The Committee is also authorized to investigate 
the observance and enforcement of State income and other 
tax laws as those laws relate to persons who seek to promote 
or support litigation to which they are not parties con­
trary to the statutes pertaining to champerty, maintenance, 
barratry, and running and capping, etc. (§30-42(b)).

The Committee’s establishment in 1958 followed the ex­
piration of two similar committees, the Committee on



10

Offenses Against the Administration of Justice and the 
Committee on Law Reform and Racial Activities, both of 
which were organized in 1956 (R. 50, 59). At least two 
members of the present Committee were members of the 
previous committees (R. 54, 59). By the statute creating 
it, the present Committee is given access to the records 
of the previous committees (§30-50). The two earlier com­
mittees cooperated with each other, used the same in­
vestigators and exchanged information (R. 59-60).

The testimony of three members of the present Com­
mittee showed that the present Committee and its two 
predecessors have concentrated their investigations almost 
entirely upon the NAACP and the Legal Defense Fund 
(R. 42, 54-55, 60-62). This is also evident from the reports 
of the two prior committees which were excluded from 
evidence (Exhibits A and B ; R. 53) and from the report 
of the present Committee which was admitted in evidence 
(Exhibit C; R. 53).

The interrogatories propounded are in the following 
form (R. 6-10) (the date December 31, 1956, having been 
used in those addressed to NAACP (R. 7) and to the 
Conference (R. 9) and the date December 31, 1957, having 
been used in the interrogatory addressed to the Legal 
Defense Fund (R. 8) ) :

“ Committee on Offenses Against the Administration 
of Justice, a legislative committee of the Common­
wealth of Virginia, calls upon [ .......................] (here­
inafter referred to as [ .......................])  to answer under
oath the following interrogatories:

“ 1. (a) State the name and address of each resident 
of Virginia and of each firm, corporation and 
enterprise situated or doing business therein 
who or which, since December 31, 195...., has 
made a donation of $25.00 or more to the 
.......................; and



11

“ (b) State the time and the amount of each such 
donation.

“ 2. (a) State the name and address of each recipient 
of sums paid by the ....................... since De­
cember 31, 195.... for legal services rendered 
it or them or any other in the Commonwealth 
of Virginia; and

“ (b) State the time and the amount of each such 
payment, and the nature of the services for 
which each payment wTas made.

“ The word ‘donation’ as used in interrogatory no. 1 
shall be deemed to include, but shall not be limited to, 
each payment of $25.00 or more received by the
....................... as a membership charge or fee, it being
understood that the ......................  in answering the
interrogatory is not required to state the purpose of 
any donation.

“ These interrogatories are propounded pursuant to 
§30-42 (b) of the Code of Virginia, and answers thereto 
are required to aid the Committee in determining what 
donors, if any, have wrongfully recorded their dona­
tions as allowable deductions in their income tax 
returns filed with the Commonwealth of Virginia, and 
what recipients, if any, have wrongfully failed to 
show as income in such returns fees for legal ser­
vices rendered in the Commonwealth of Virginia.”

Without waiving its objections, the Legal Defense Fund 
answered Interrogatory No. 1 in part and Interrogatory 
No. 2 completely (R. 17-23). All information requested by 
Interrogatory No. 1 was given except the names and ad­
dresses of donors. The Fund listed the date and amount 
of each donation and the city from which it was received 
(R. 18-20). In response to Interrogatory No. 2, the Fund 
supplied the name and address of each person to whom 
money had been paid for legal services as well as the time 
and amount of each payment and the nature of the services



12

involved (R. 18-23). The Committee’s counsel acknowledged 
the Fund’s cooperation stating: “ We are extremely grate­
ful to you and your associates for answering all of our 
interrogatories, except the ones referring to the names of 
the contributors” (R. 75).

Approximately one million income tax returns are filed 
in the State of \irginia each year (R. 67). Sixty percent 
of these returns are “ short form” returns on which tax­
payers take a standard deduction and do not itemize their 
deductions (R. 67). Virginia law permits certain charitable 
contributions to be deducted from gross income (Code 
§58-81 (m )), but contributions to an organization which 
supports litigation to which it is not a party or in which 
it has no direct interest may not be deducted under a 1958 
amendment to the tax law (Code §58-84.1). Under this 
provision the state tax department considers that con­
tributions to the Legal Defense Fund are not allowable 
deductions (R. 66). Individual income tax returns in Vir­
ginia are filed with local revenue commissioners who audit 
each return (R. 67) as required by Code §§58-110 and 
58-111. All charitable contributions claimed as deductions 
must be itemized, and local revenue commissioners are 
under instructions to check for and disallow any improper 
deductions (R. 67). In addition, all returns are forwarded 
to the State Department of Taxation where a further audit 
is made, though not of every return (R. 66, 109).

There is no evidence that any contributor to the 
NAACP, the Conference, or the Legal Defense Fund 
has claimed a deduction for such a contribution on a 
Virginia tax return except for the testimony of the as­
sistant to the director of the State Department of Taxation 
that he had heard of one such instance (R. 66-67). There 
is no evidence or claim that any contributor or donor has 
committed any of the offenses against the administration 
of justice.



13

Officials of the Legal Defense Fund fear that reprisals 
would be taken against contributors if their names were 
disclosed (R. 72). The organizations made a detailed proffer 
of evidence they were prepared to present to demonstrate 
the detrimental effect upon their membership and fund 
raising campaigns of legislation passed in 1956 which 
sought to require disclosure of the names of members and 
contributors (R. 83). The court below struck the testimony 
of the executive secretary of the Conference that individuals 
have refused to identify themselves with the Association 
despite their sympathy with its goal and that contributions 
have been forthcoming after assurances were given that 
the names of contributors would not be disclosed (R. 83- 
84). It was proved that several persons anonymously join 
or contribute to NAACP (R. 85).

Mrs. Sarah Patton Boyle, a resident of Albemarle County, 
testified that she was a member of the NAACP; that 
she worked in obtaining memberships and contributions for 
the organization in the white community; and that she 
was publicly identified with the NAACP (R. 98-100). 
Mrs. Boyle stated that because of her identification with 
the NAACP she had received anonymous threats on 
the telephone including threats that her home would be 
blown up; that a cross was burned fifteen feet from her 
bedroom window at a time when her husband was away; 
that someone sent an ambulance to her home “ for the dead 
or mangled body of Sarah Patton Boyle” ; and that she is 
frequently attacked by letters to the editor in the news­
papers (R. 100-101). In addition, she mentioned that she 
was subjected to personal social pressures and that one 
man threatened her with economic pressure (R. 103).



14

A R G U M E N T

I.

The Committee Is Not Authorized by Law to Investi­
gate the Matters Inquired Into by Interrogatory No. 1.

[ See Assignment of Error No. 2 and Question Involved 
No. I.]

Interrogatory No. 1 seeks the name and address of each 
Virginia resident who has made a donation of $25 or more 
to the Legal Defense Fund since December 31, 1957, and 
the time and amount of each such donation (R. 8). It was 
stated that the interrogatories were propounded “ pursuant 
to Section 30-42(b) of the Code of Virginia, and answers 
thereto are required to aid the Committee in determining 
what donors, if any, have wrongfully recorded their dona­
tions as allowable deductions in their income tax returns 
filed with the Commonwealth of Virginia . . . ” (R. 8).

The statute mentioned, Section 30-42 (b), provides as 
follows:

(b) The joint committee is further authorized to in­
vestigate and determine the extent and manner in 
which the laws of the Commonwealth relating to State 
income and other taxes are being observed by, and 
administered and enforced with respect to persons, 
corporations, organizations, associations and other in­
dividuals and groups who or which seek to promote 
or support litigation to which they are not parties 
contrary to the statutes and common law pertaining 
to champerty, maintenance, barratry, running and 
capping and other offenses of like nature.

Section 30-42 (b), thus, only authorizes an investigation 
into the tax affairs of persons and organizations who “ seek 
to promote or support litigation to which they are not 
parties contrary to the statutes and common law” pertain-



15

mg to the various offenses specified in the last clause of 
the subsection (emphasis supplied). Code Section 30-42(a) 
which authorizes investigations relating to such offenses, 
e.g., champerty, maintenance, barratry, running and cap­
ping, etc., is not relied upon by the Committee to justify 
the present investigation. It is submitted that the present 
investigation is unauthorized because it is not an investi­
gation of any persons or organizations who promote or 
support litigation “contrary to”  the laws pertaining to 
champerty, maintenance, barratry, running and capping, 
etc.

"While the interrogatory is directed to the Legal Defense 
Fund, the Committee chairman expressly disclaimed that 
its purpose was to investigate the Fund (R. 49, 118). He 
stated repeatedly that the purpose of the question was to 
determine if any persons who had made donations to the 
NAACP and the Fund, had violated state income tax laws, 
and that the Committee wanted their names in order to 
check their tax returns (R. 47, 48, 118, 119). He stated 
that it was not the present purpose of the Interrogatories 
to determine whether the Legal Defense Fund or the 
NAACP were themselves violating the tax laws, and that 
this was not an investigation to determine if the laws on 
barratry, champerty, running and capping, etc., were being 
violated by the organizations (R. 48-49).

The Committee, having asserted a purpose to inquire 
into the tax affairs of donors to the Fund, has failed to 
establish that such donors are persons who it may investi­
gate under Section 30-42 (b). This is so because there is 
no showing or claim that such donors promote or support 
litigation to which they are not parties, “ contrary to”  any 
valid laws of the State. The Committee asserted that the 
Fund and the NAACP violated the laws pertaining to the 
unauthorized practice of law (R. 44), but has never as­
serted that mere donors to the organization are persons 
who have violated such laws. The assertion that the or­
ganizations violated the laws was not based upon any de­



16

termination by the Committee itself (R. 49), but upon the 
decision of this Court in NAACP v. Harrison, 202 Va. 142, 
116 S. E. 2d 55 (1960) (R. 44, 49), that the organizations’ 
activities violated Chapter 33, Acts of Assembly, Ex. Sess. 
1956. Since then, Chapter 33 has been held unconstitutional 
in NAACP v. Button, 371 U. S. 415. But neither the Com­
mittee, nor any court, has ever determined that mere con­
tributors or donors to these organizations acted “ contrary 
to” any law. Indeed, this Court held in NAACP v. 
Harrison, 202 Ya. 142, 116 S. E. 2d 55 (1960), that Chap­
ter 36, Acts of Assembly, Ex. Sess., 1956, was unconsti­
tutional under both the State and Federal Constitutions 
stating that “ the appellants and those associated with them 
may not be prohibited from contributing money to per­
sons to assist them in commencing or further prosecuting 
such suits, which have not been solicited by the appellants 
or those associated with them, and channeled by them to 
their attorneys or any other attorneys.”

If the organizations’ right to financially support litiga­
tion is constitutionally protected, it follows a fortiori that 
members of the public whose only connection with the 
organizations is as donors, are not acting “ contrary to” 
any valid laws relating to supporting litigation to which 
they are not parties. Furthermore, even if the organiza­
tions could be assumed to be violating such laws, it can 
hardly be claimed that all their donors also acted in viola­
tion of the laws without any evidence that they made 
donations with criminal intent and with scienter or knowl­
edge that they were supporting lawsuits in violation of 
the laws. It is basic to due process, at least in the area 
of free speech, that innocent “ unknowing” activity cannot 
be thus indiscriminately classified as criminal conduct un­
der notions of strict liability. Wieman v. Updegraff, 344 
U. S. 183, 191; Smith v. California, 361 U. S. 147. Where, 
as here, the donors are unknown to the Committee, it ob­
viously cannot claim that they have supported litigation 
“ contrary to the statutes and common law.” Indeed, the



17

Committee’s chairman professed not to know whether con­
tributors to the organizations were “ offenders” (R. 121). 
Absent a showing that the Committee had some grounds 
to believe that donors to the Legal Defense Fund are 
acting “ contrary to” laws of the type mentioned in the 
last clause of Section 30-42 (b), it is manifest that the 
Committee has no authority to investigate their tax affairs 
under this statute.

Whatever the legislature’s power to authorize an in­
vestigation, it is clear that the present inquiry into the 
tax affairs of mere donors to the Fund is not authorized 
by the law creating the Committee. “ The scope of the 
power of the legislative committee and the matters which 
it may investigate are referable primarily to the act or 
resolution to which it owes its existence.”  49 Am. Jur., 
States etc., §42, p. 259. Particularly where the legislative 
investigative process touches upon the highly sensitive 
areas of free speech and association, it is important that 
the delegation of power to an investigative committee be 
clearly revealed in its charter. Cf. Sweezy v. New Hamp­
shire, 354 U. S. 234, 245; Watkins v. United States, 354 
U. S. 178, 198. That is not the case here, and thus the 
inquiry is not authorized and should not be enforced by 
the process of the courts.



18

n.
The Rights of the Legal Defense Fund and Its Con­

tributors as Protected by the Due Process Clause of the 
Fourteenth Amendment to the Constitution of the United 
States Are Infringed by the Failure of the Committee to 
Clearly State the Scope of Its Investigation and How 
Interrogatory No. 1 Is Pertinent to That Investigation.

[ See Assignment of Error No. 3 and Question Involved 
No. II.]

The argument set forth in Part I of this brief above states 
the Fund’s contention that the Committee is not authorized 
by Section 30-42(b) of the Code of Virginia to conduct an 
inquiry into the tax affairs of persons who have contributed 
money to the Fund. As previously stated, the Committee 
attempts to relate the question to Section 30-42(b) (R. 8, 
47-48). The order of the court below stated only that the 
Interrogatory “was relevant to the respondent’s inquiry 
and that the petition had been advised of that relevancy” 
(R. 33).

It is submitted that since the information sought is not 
plainly within the authority granted the Committee by 
Section 30-42 (b), a statement by the Committee that it 
seeks the information pursuant to Section 30-42(b) (R. 8) 
is singularly uninformative. Neither the Committee nor the 
court below has stated the reasoning by which the informa­
tion sought is pertinent to any matter properly within the 
investigative power of the Committee.

In addition, further confusion as to the purpose and 
scope of the investigation is engendered by the Committee 
counsel’s statement at the trial that “we are concerned 
with whether they [the organizations] have committed the 
offense of engaging in the unauthorized practice of law 
which ties in with the purpose of the inquiry here” (R. 40). 
A  member of the Committee, Delegate Thomson, testified



19

that the purpose of the Interrogatory was “ a lot broader 
than” to investigate the tax affairs of donors to these or­
ganizations (R. 58), although he declined to elaborate on 
what else the inquiry encompassed.

Under the due process clause of the Fourteenth Amend­
ment, the Fund is entitled to be informed as to the scope 
of the investigation and of the connective reasoning by 
which the information sought is thought to be pertinent to 
the subject being investigated. Scull v. Virginia, 359 U. S. 
344; Watkins v. United States, 354 U. S. 178, 214-215; 
Deutch v. United States, 367 U. S. 456, 467-469. In Scull 
v. Virginia, supra, a case in which the Supreme Court re­
versed the contempt conviction of one who had refused to 
answer questions propounded by the Virginia Committee 
on Law Reform and Racial Activities, the Supreme Court 
made clear that pertinency was “ all the more essential when 
vagueness might induce individuals to forego their rights 
of free speech, press, and association for fear of violating 
an unclear law” (359 U. S. at 353).

In Deutch v. United States, 367 U. S. 456, 467-468, the 
Court, while deciding the case on statutory grounds, re­
iterated that there was a due process requirement that the 
topic under inquiry in legislative investigations be made 
clear and that the pertinence of questions be demonstrated. 
In the area of free speech and association, a vaguely de­
fined investigation including questions not demonstrably 
and indisputably pertinent, poses a special threat. Indi­
viduals may be induced to give up their constitutional rights 
to privacy of association through fear of violating the law 
in defying a demand for information, even though the in­
formation demanded is not pertinent to any authorized in­
vestigation and its disclosure could not be compelled law­
fully.

It is submitted that the failure of the Committee to state 
clearly the scope of its investigation and the pertinency of 
the question asked, is sufficient ground for quashing the 
interrogatory.



20

m .

Compelled Disclosure of the Names and Addresses of 
the Fund’s Contributors Would Violate Their Rights to 
Freedom of Association and the Fund’s Property Rights 
as Protected by the Constitution of Virginia and the Con­
stitution of the United States.

[See Assignments of Errors Nos. 1 and 9 and Ques­
tions Involved Nos. Ill and IV.]

It is now beyond debate that the right of freedom of 
association, related as it is to free speech, assembly and 
petition, is protected against state infringement by the 
due process clause of the Fourteenth Amendment to the 
Constitution of the United States, Gibson v. Florida Inves­
tigation Committee, 372 U. S. 539; NAACP v. Button, 371 
U. S. 415; NAACP v. Alabama, 357 U. S. 449; Bates v. 
Little Rock, 361 U. S. 516; Shelton v. Tucker, 364 U. S. 479 ; 
Talley v. California, 362 U. S. 60; and by the Virginia 
Bill of Rights (Constitution §12), NAACP v. Harrison, 202 
Va. 142, 116 S. E. 2d 55; NAACP Legal Defense and Edu­
cational Fund, Inc. v. Harrison (Circuit Ct. City of Rich­
mond, Chancery No. B-2879, 1962), reported unofficially in 
7 Race Rel. L. Rep. 864, 1216. In Gibson v. Florida Inves­
tigation Committee, 372 U. S. 539, at 544, the Supreme 
Court reiterated the language of NAACP v. Alabama (357 
U. S. at 402):

It is hardly a novel perception that compelled dis­
closure of affiliation with groups engaged in advocacy 
may constitute [an] . . . effective restraint on freedom 
of association. . . . This Court has recognized the vital 
relationship between freedom to associate and privacy 
in one’s associations . . . Inviolability of privacy in 
group association may in many circumstances be in- 
dispensible to preservation of freedom of association, 
particularly where a group espouses dissident beliefs.



21

This record reveals that compelled disclosure of the 
names of those contributing funds to the Fund and the 
NAACP would work a significant interference with the 
freedom of association of the organizations’ donors,1 as 
well as with the organizations’ interest in their continued 
existence and the execution of their programs and policies. 
Here, as in Bates v. Little Rock, 361 U. S. 516, 524, there 
was uncontroverted evidence that public identification of 
persons in the community with the organization had been 
followed by harassment and threats of bodily harm (R. 99- 
101). See NAACP v. Alabama, supra. Numerous other 
attempts by the Fund and the NAACP to show that govern­
mental attempts to identify supporters resulted in loss of 
support due to fear of reprisals were excluded by the trial 
court (R. 82, 83, 84, 86, 88, 89). The Director of the Legal 
Defense Fund did testify that reprisals would be taken 
against contributors if their names were disclosed (R. 71, 
72, 76). It was brought out that some persons anonymously 
join or contribute to the NAACP (R. 85, 90, 91, 105), but 
the trial court refused to let a witness testify as to state­
ments to him that this was a result of fear of reprisals 
(R. 86). The evidence shows that some persons have re­
fused to identify themselves with the NAACP despite their 
sympathy with its goals, and that some contributions have 
been forthcoming only after assurances were given that the 
names of contributors would not be disclosed (R. 88, 89). 
The trial court refused to allow evidence showing that in­
come received by the NAACP and the State Conference in­
creased after court decisions made the threat of disclosure 
of members less imminent (R. 83). It was established that 
public hearings and other occasions upon which an indi­
vidual’s affiliation with the NAACP became a matter of 
public record have been followed by abusive phone calls,

1 Plaintiff in error is the appropriate party to assert these rights, 
since to require them to he claimed by its donors “would result in 
nullification of the right at the very moment of its assertion,” 
N AACP  v. Alabama, 357 U. S. 449, 459, 460; Bates v. Little Rock, 
361 U. S. 516, 524, n. 9.



22

bomb threats, a cross burning and similar incidents (R. 
100-01).

In addition to this uncontroverted evidence of com­
munity hostility and reprisals against those publicly affili­
ated with plaintiff in error, the history of hostility and re­
sistance in Virginia to the organization and the goals which 
it espouses are a matter of public record. High officials of 
the State have expressed their attitude of resistance to 
desegregation and hostility to persons and organizations 
working to support desegregation. This history is well 
known and has been repeatedly recounted in judicial opin­
ions. See NAACP v. Patty, 159 F. Supp. 503, 506-17 (E. D. 
Va. 1958), vacated on other grounds sub nom. Harrison v. 
NAACP, 360 U. S. 167; Adkins v. School Board of the 
City of Newport News, 148 F. Supp. 430, 434-436 (E. D. 
Va. 1957); Scull v. Virginia, 359 U. S. 344, and see, gener­
ally, Virginia Acts, 1956 Extra Session, Chapters 31-37, 
56-71. As stated by the United States Supreme Court in 
NAACP v. Button, 371 U. S. 415, 435, “We cannot close our 
eyes to the fact that the militant Negro civil rights move­
ment has engendered the intense resentment and opposition 
of the politically dominant white community.” Without a 
doubt, in Virginia, the NAACP, the Conference and the 
Legal Defense Fund are organizations espousing a contro­
versial, dissident and unpopular cause. Exposure of affilia­
tion and support can have no other result than to affect 
adversely the ability of plaintiff in error and its supporters 
to pursue their collective effort to work for goals they 
clearly have a right to advocate.2 Shelton v. Tucker, 364 
U. S. 479; NAACP v. Alabama, 357 U. S. 449; Bates v. 
Little Rock, 361 U. S. 516; NAACP v. Button, 371 U. S. 
415.3

2 It is unimportant that this repressive effect is, in part, the 
result of private attitudes and pressures, if governmental action 
in forcing disclosure inhibits freedom of association, NAACP  v. 
Alabama, 357 U. S. at 463; Bates v. Little Rock, 361 U. S. at 524.

3 Counsel for the respondent committee suggested to the Court 
below that Rule 14 of the Committee protects against public dis­



23

Of course, in the final analysis the right to privacy of 
association need not necessarily turn on the popularity 
or unpopularity of the group involved. As Mr. Justice 
Douglas stated in a concurring opinion in Gibson v. Florida 
Investigation Committee, 372 U. S. 539, 570, “ whether a 
group is popular or unpopular, the right of privacy implicit 
in the First Amendment creates an area into which the 
Government may not enter.” It may be noted that the hold­
ing in Talley v. California, 362 U. S. 60, that an ordinance 
requiring handbills to disclose the name and address of 
the distributor or printer was invalid, did not rest upon any 
determination that the group involved was an unpopular 
one. The handbills involved in Talley urged a boycott in 
support of equal employment rights for minority groups in 
California (362 U. S. at 61).

Due regard for the constitutionally protected right of 
freedom of association, and for the obvious injury which 
would result from the disclosures sought here, compels the 
conclusion that the State has not justified invasion of as- 
sociational privacy in this case. The Committee stated that 
the names of donors were sought pursuant to Virginia 
Code ^30-42(b) and that they were “ required to aid the 
Committee in determining what donors, if any, have wrong­
fully recorded their donations as allowable deductions in

closure of the information sought. That rule merely provides: 
“No committee records, reports or publications, or summaries 
thereof shall be made or released to others without the approval 
of the Chairman of the Committee or a majority of its members.” 
(R. 116). Thus, a simple vote of the Committee or even the 
decision of its chairman can authorize publication of the names 
of donors. The chairman stated that he did not know if the names 
would be made public (R. 119). Even if the Committee should 
not wish to publish donors’ names, there is no assurance that the 
Legislature would not make them public, particularly in light of 
previous legislative attempts to do so. See Chapters 31 and 32, 
Acts of Assembly, Extra Session, 1956, codified as Sections 18.1-372, 
et seq. and 18.1-380, et seq. These laws were held invalid in NAACP  
Legal Defense and, Educational Fund v. Harrison (Circuit Ct. 
City of Richmond), 7 Race Rel. L. Rep. 864, 1216.



24

their income tax returns filed with the Commonwealth of 
Virginia. . . . ” 4 In order to sustain the compelled dis­
closure sought, justification for requiring the names of 
contributors must be found in “ the substantiality of the 
reasons advanced in support of the regulation of the free 
enjoyment of the rights.” Gibson v. Florida Investigation 
Committee, supra at 545; Schneider v. State, 308 U. S. 147, 
161. This Court must, therefore, appraise the Committee’s 
explanation that its purpose -was to learn “what donors, if 
any, have wrongfully recorded their donations as allowable 
deductions,” in light of the constitutional rights asserted 
by the Fund (R. 9).

Analysis reveals how insignificant is the State’s pecuniary 
interest in learning the names of these contributors. Con­
tributions received by the Fund from Virginia in amounts 
of $25 or more totalled $16,610.20 for the years 1958, 1959, 
1960 and part of 1961 (R. 17-20). Assuming that every 
contributor to the Fund itemized his deductions and claimed 
a deduction for his contribution every year, and assuming 
that every contributor was in the highest tax bracket of 
5% (Code §58-101), and assuming arguendo that deduc­
tion of contributions to the Fund is improper, the State 
would have lost a grand total of $830.51, through such tax 
deductions over the 3x/2 year period. This is obviously an 
unrealistically high figure, when it is considered that 60% 
of taxpayers use the optional standard deduction (R. 67), 
and that there is no reason to believe that any of the Fund’s 
donors claimed such deductions properly or improperly. 
Any actual lost revenue is obviously a trifling amount. 
Viewed against the gravity of the injury to contributors 
if their names are disclosed, the financial interest of the 
State is insignificant.

4 Plaintiff in error supplied all other information sought includ­
ing the amount contributed by each donor (each donor being as­
signed a number), the city of residence of each donor, and fees 
paid for legal services rendered in the Commonwealth (R. 17-23).



25

But more fundamental is the fact that all of the informa­
tion needed to determine which, if any, donors have de­
ducted contributions to the Fund on their tax returns is 
already in the possession of the State— on the tax returns 
themselves. Any donors who have claimed such deductions 
have thus voluntarily disclosed their support of the Fund, 
but the Fund has no way of knowing which, if any, donors 
have done this. But the State can find this out directly by 
examining the returns which are in the State’s own tax 
files and which are available to the Committee (R. 29; 
Code ^30-49). Despite the fact that all returns have al­
ready been checked by the local revenue commissioners and 
that many have again been checked by the State tax de­
partment auditors, the Committee asserts that it wants to 
check them again. If it so chooses, the Committee can 
examine the returns on file. The Committee has attempted, 
but plainly failed, to show that such a check by it would 
be impracticable (R. 107-109, 111-114).5 Sixty percent of 
the one million tax returns filed each year in Virginia are 
on a one-page short form and could be disregarded at a 
glance in such a check since they involved taxpayers using 
the optional standard deduction (R. 113-114). A check of 
the other forty percent of the returns for this information 
would only require a mere glance at the appropriate line 
on the return to determine if the Legal Defense Fund was 
mentioned. This could obviously be done by anyone who 
can read the name of the Defense Fund and tvould not 
require a skilled auditor.

'W h e n  questioned by counsel for the Committee, an official of 
the State Department of Taxation testified that it would take ap­
proximately two years to check all personal and corporate returns 
for the period since January 1, 1957 (R. 107, 108), but on cross 
examination it was revealed that his estimate was based solely on 
the experience of an auditor making a complete audit of tax re­
turns (R. 112) including checking every item on the return for 
accuracy (R. 112). When asked if he had made any estimate of 
the amount of time it would take an auditor to check returns 
merely to see if a contribution was made to a given organization, 
he testified that he had not (R. 112).



26

The essential point is that the Committee has the means 
of obtaining the information which it says that it needs 
without requiring the broad disclosure of the names of 
all of the Fund’s donors and without invading the privacy 
of their association. Thus, the demand made is plainly un­
necessary to the development of the information which the 
Committee states that it wants.

“When it is shown that state action threatens signifi­
cantly to impinge upon constitutionally protected freedom, 
it becomes the duty of this Court to determine whether the 
action bears a reasonable relationship to the achievement 
of the governmental purpose asserted as its justification.” 
Bates v. Little Rock, 361 U. S. 516, 525. Given the insig­
nificant monetary amount involved, the fact that the State 
has already checked and in some cases double checked the 
tax returns for such deductions; and the fact that the State 
has the information it says it wants in its files, it is evident 
that the Committee has not asserted an interest sufficiently 
substantial to justify abridgement of the constitutional 
rights of the Fund and its donors.

The application of the principle to this case is well illus­
trated by Shelton v. Tucker, supra, where a state law sought 
to compel teachers to disclose every organization to which 
they belonged in order to assist local school boards to 
determine the suitability of teachers. It was not disputed 
that some of the information sought might serve a legiti­
mate governmental purpose (364 U. S. at 485). But, the 
Supreme Court nevertheless ruled that the law was invalid 
stating:

Though the governmental purposes be legitimate and 
substantial, that purpose cannot be pursued by means 
that broadly stifle fundamental personal liberties when 
the end can be more narrowly achieved. The breadth 
of legislative abridegement must be viewed in the light 
of less drastic means for achieving the same basic pur­
pose (364 U. S. at 488; and see authorities cited there­
in).



27

For much the same reason, this Court struck down Chapter 
36, Acts of Assembly, Ex. Sess., 1956, in NAACP v. Har­
rison, 202 Va. 142, 116 S. E. 2d 55 (1960); cf. Gibson v. 
Florida Investigation Comm., 108 So. 2d 729, cert, denied 
360 U. S. 919; and Graham v. Florida Legislative Investiga­
tion Comm., 126 So. 2d 133.

In addition to its failure to use “ less drastic means” for 
the attainment of its purpose, the Committee has failed 
to carry its burden under the rule of Gibson v. Florida 
Investigation Comm., 372 U. S. 539, 546, of convincingly 
showing a substantial relation between those whose pri­
vacy is invaded and a subject of overriding and compelling 
state interest. Gibson, supra, is in principle indistinguish­
able from this case. There, a Legislative Committee of the 
State of Florida sought to determine the extent of com­
munist influence in the NAACP by ordering a branch presi­
dent to consult membership records himself and, after 
doing so, to inform the Committee which, if any, of the 
persons identified as communists were members of the 
Branch. The branch president refused and was held in 
contempt. The Supreme Court reversed on the ground that 
the Committee had failed to show a sufficient “ nexus” or 
“ foundation” establishing a connection between the NAACP 
and the evil to be investigated, namely, communist sub­
version (372 U. S., at 554-558). Despite evidence that 14 
communists or members of communist “ front” organiza­
tions had been affiliated with the Branch and that at least 
one contribution had been made to the Branch by a com­
munist (and see generally 372 U. S. at 550-554), the Court 
held the legislative interest insufficient to overcome the 
fundamental rights of associational privacy.6

6 An earlier attempt by the legislative committee to compel 
production of the entire membership list was quashed bv the 
Florida Supreme Court, 108 So. 2d 729, cert, denied 360 U. S. 
919, the Court stating that the Committee could, however, compel 
the custodian of the records to bring them to the hearing and refer 
to them. It was a refusal of this latter request by the branch 
president which the United States Supreme Court upheld (372 
U. S. 539).



2 8

In contrast, the “ slender showing” (372 U. S. at 556) of 
a connection between the organization and the evil to be 
investigated in the Gibson case, supra, is far stronger than 
anything in this record. Here, the evil under investigation 
is persons who take tax deductions for contributions to the 
Fund. This record is barren of evidence showing any his­
tory or practice of improper deductions of contributions 
to the Fund. The only reference in this record to any case 
of deduction of contributions is the testimony of an official 
of the State Tax Department that he had “heard” of one 
instance where a person had claimed a deduction which 
was later disallowed (R. 66, 67). Whether this contribution 
was to the NAACP, the Conference or the Legal Defense 
Fund, was not specified. There was no evidence that deduc­
tion of gifts to the Fund is a special problem in the collec­
tion of taxes, or that donors to the Fund have any pro­
pensity to make improper deductions. If the showing in 
Gibson connecting the organization with the evil to which 
the questions pertained was an insufficient “ nexus” or 
“ foundation” to overcome the right of privacy, then a 
fortiori there has been no sufficient “nexus”  or “ founda­
tion” shown here. The mere possibility, unsupported by 
any factual showing, that the organization and the “ evil” 
may be connected cannot be enough to meet the Gibson 
test, for the mere “possibility” of such a connection was 
clearly present in that case. Absent some proven factual 
connection between improper tax deductions and contribu­
tions to the Fund, the strong interest in maintaining as- 
sociational privacy must prevail. This conclusion is all the 
more cogent in this case because here the evidence of a 
connection between the Fund and improper tax deductions 
by its donors, if such evidence exists, is all within the cus­
tody and control of the Commonwealth in the form of tax 
records.

Disclosure of the information sought not only impairs 
contributors’ rights to associational privacy, but it also 
abridges the organization’s property rights as secured by 
the due process clause of the Fourteenth Amendment to



29

the Constitution of the United States and by the Virginia 
Bill of Rights (Constitution of Virginia, §11). The right 
of the Fund to receive and solicit contributions to support 
its program free from invidious regulations is protected 
by the Fourteenth Amendment. Pierce v. Society of Sisters, 
268 U. S. 510, 535, 536. See also, NAACP v. Patty, 159 
F. Supp. 503 (E. D. Va. 1958), vacated on other grounds, 
sub nom. Harrison v. NAACP, 360 U. S. 167; NAACP v. 
Button, 371 U. S. 415. In the Button case, supra, it was 
recognized that the activities of an organization support­
ing litigation as a means of achieving the lawful objec­
tives of racial equality were not a mere technique for 
resolving private differences but were in the realm of pro­
tected Fourteenth Amendment activity. As stated by the 
Court, “ . . . under the conditions of modern government, 
litigation may well be the sole practicable avenue open to 
a minority for redress of grievances” (371 U. S. at 430). 
Without more of a showing of a compelling governmental 
interest than is revealed by this record, the Committee 
cannot force disclosure of information calculated to destroy 
the organization’s ability to sustain its program. Once it 
is granted that for the minority group represented by the 
Fund “ association for litigation may be the most effective 
form of political association,” NAACP v. Button (371 
U. S. at 431), the conclusion follows inescapably that gov­
ernmental action which seriously interferes with the ability 
of such an “association” to raise funds to operate impairs 
freedom of speech. That plaintiff in error is a corpora­
tion and not a natural person does not alter this result. 
“ Freedoms such as these are protected not only against 
heavy-handed frontal attack, but also from being stifled 
by more subtle governmental interference.” Bates v. Little 
Rock, 361 U. S. 516, 523. See Pennekamp v. State of 
Florida, 328 U. S. 331 and Burstyn, Inc. v. Wilson, 343 
U. S. 495, cases holding that First Amendment rights 
apply to corporations. Indeed, the Supreme Court has 
struck down tax legislation which impaired the rights of 
corporations whose business was the dissemination of in­



30

formation on free speech grounds. Grosjean v. American 
Press Co., 297 U. S. 233. Implicit in recent decisions up­
holding the right of associational privacy is the finding 
that rights to property as well as rights to freedom of 
speech and association may not be abridged by the states 
in the absence of a compelling state interest. No such 
interest has been sh ow  here.

Rights to free association are “ fundamental and highly 
prized and ‘need breathing space to survive,’ ” (Gibson, 
supra, 372 U. S. at 544). In view of the slight interest of 
the Committee in the information sought from the Fund, 
as compared to the serious consequences to the associa­
tional and property rights of the Fund and its donors if 
the information is disclosed; the ability of the Committee 
to obtain the facts and fulfill its asserted purpose without 
infringing freedom of association; and the complete failure 
of the Committee to connect the Fund or its donors with 
the “ evil” of wrongful tax deductions, the Committee’s 
inquiry must be held to be a violation of the Fourteenth 
Amendment to the Constitution of the United States, and 
the Virginia Bill of Rights (Constitution of Virginia, §§11, 
12) .



31

IV.
By Erroneously Excluding Evidence of the Injury 

Which Would Result to Plaintiff in Error and Its Con­
tributors, the Trial Court Denied Rights Protected by 
the Fourteenth Amendment to the Constitution of the 
United States and the Virginia Constitution.

[See Assignment of Error No. 5 and Question Involved 
No. V .] )

The trial court repeatedly refused to permit plaintiff 
in error to demonstrate the effect disclosure of the names 
of donors would have on persons desiring to support the 
organization and the organization’s attempt to raise funds 
(R. 72-74, 81-87, 99, 105).

The court sustained objection to this question: “Will 
you give us an account of how, if at all, the several efforts 
of the different agencies of the Commonwealth of Virginia 
since 1956 to obtain the names of the members and con­
tributors of the Association have at one time or another 
affected the success of the membership and fund raising 
campaign?” (R. 81). The stated purpose of the question 
was to show that disclosure would work financial harm and 
loss to the organizations (R. 82) and plaintiff in error 
proffered testimony to the effect that 1956 legislation aimed 
at requiring disclosure of the names of the members and 
contributors had a detrimental effect upon the membership 
and fund raising campaign which was relieved after the 
federal court declared that menacing legislation invalid 
(R. 83).

The court also sustained objection to testimony offered 
to show that a considerable number of people decline to 
support the organization for fear of public reprisals re­
sulting from disclosure. The court struck out testimony 
that individuals have refused to identify themselves with



32

the Association, as members of the Association, but have 
been and are very sympathetic to the objectives of the 
Association and very willingly make contributions to the 
Association if they are assured that these contributions 
will not become a matter of record (R. 73, 86, 87).

In excluding this evidence as irrelevant or as hearsay, 
the court rejected the only means by which the plaintiff 
in error could demonstrate the adverse effect of disclosure 
of the information sought on both the property rights of 
the organization and the associational rights of its con­
tributors. Obviously, for donors who wish to be anony­
mous to testify about their reason for so wishing would 
require a surrender of the very constitutional right of 
privacy in association which they seek to assert. Cf. 
NAACP v. Alabama, 357 U. S. 449, 459, 460.

The hearsay rule is no bar to the introduction of this 
evidence. First, one purpose of the evidence was to estab­
lish that individuals who desired to support the organiza­
tion were inhibited by fear of reprisal if their support 
were a matter of public knowledge. As disclosure would 
inhibit such persons from giving support, because of their 
fear, the fact that their fear might be groundless is irrele­
vant to a showing that disclosure would decrease contribu­
tions. Statements offered to show belief in a proposition 
rather than the truth of the proposition are not hearsay 
at all. 5 Wigmore on Evidence §1361, p. 2. Second, an­
other purpose of the evidence was to establish the com­
munity attitude toward the organization and its supporters. 
There is no other way to establish community attitudes 
than to ask persons what others have told them. 5 Wig- 
more on Evidence §1609, p. 479. In such a situation a 
trial judge sitting without a jury should permit the intro­
duction of evidence and consider its character as going 
to the weight to which it should be accorded. Finally, the 
evidence excluded consisted of so-called “ constitutional



33

facts”—facts upon which the application of the guarantee 
of freedom of association depends. In both NAACP v. 
Alabama, 357 U. S. 449 and Bates v. Little Rock, 361 U. S. 
523, the United States Supreme Court relied on evidence 
that disclosure would work significant interference with the 
organization and its members due to fear of community 
hostility and reprisal. The exclusion of this evidence de­
signed to protect Fourteenth Amendment claims is in itself 
a denial of due process contrary to that Amendment 
(Washington ex rel. Oregon R. & N. Co. v. Fairchild, 224 
U. S. 510. Cf Law ranee v. 8tatrr^dlr^tmtrn^yJ22&-AAr-  ̂
276), for how else could the rights protected by the Consti­
tution be vindicated.

V.

The Statute Creating the Respondent Committee 
Serves an Impermissible Purpose and Violates the Due 
Process and Equal Protection Clauses of the Fourteenth 
Amendment.

[See Assignment of Error No. 8  and Question Involved 
No. VI.]

The statute creating the respondent Committee, far from 
serving any valid and substantial governmental purpose, 
was part of a legislative program designed to preserve 
racial segregation and obstruct the constitutionally pro­
tected activities of the Legal Defense Fund, the NAACP, 
and the Conference.

Following the Supreme Court cases outlawing segrega­
tion in public schools, Brown v. Board of Education, 347 
U. S. 483, which were argued by lawyers associated with 
the Legal Defense Fund and the NAACP, and one of which 
arose in Virginia (Davis v. County School Board of Prince 
Edward County, 347 U. S. 483), the General Assembly 
adopted several measures to prevent the implementation of 
the Court’s decree. Meeting in Extra Session on December



34

3, 1955, it enacted a bill enabling the voters to authorize a 
constitutional convention on the question of tuition pay­
ments for private schooling. During the regular session of 
1956, it resolved “ to take all appropriate measures hon­
orably, legally and constitutionally available to us, to re­
sist this illegal encroachment [the Supreme Court decision] 
upon our sovereign powers. . . . ” Acts 1956, pp. 1213, 1214. 
Later in 1956, an Extra Session was held, at which were 
passed a law preventing state support of integrated schools 
(Chapter 71), the Pupil Placement Act (Chapter 70), and 
a law providing for the closing of integrated schools 
(Chapter 68).

Included in the package of “ massive resistance” laws 
passed at the Extra Session of 1956 were two statutes 
requiring registration of a narrowly defined class of per­
sons or groups (Chapters 31, 32). Compliance with these 
statutes by the NAACP and the Fund would have entailed 
disclosure of the same information as is sought by the 
Committee’s interrogatories in the instant case, and these 
statutes have been held unconstitutional by both the fed­
eral courts, NAACP v. Patty, 159 F. Supp. 503, vacated on 
other grounds, Harrison v. NAACP, 360 U. S. 167 (1959), 
and the Virginia courts, NAACP v. Harrison, Cir. Ct. Rich­
mond, Chancery No. B-2880, August 31, 1962; NAACP Le­
gal Defense and Educational Fund, Inc. v. Harrison, Cir. 
Ct. Richmond, Chancery No. B-2879, August 31, 1962, as 
an infringement of free speech.

Another element of the legislative campaign against the 
NAACP and the Legal Defense Fund was the passage in 
the 1956 Extra Session of statutes on barratry (Chapter 
35), maintenance (Chapter 36) and running and capping 
(Chapter 33). All have been held unconstitutional, NAACP 
v. Harrison, 202 Va. 142 (1960) (Chapter 36); NAACP v. 
Button, 371 U. S. 415 (1962) (Chapter 33); NAACP Legal 
Defense and Educational Fund v. Harrison, Cir. Ct. Rich­
mond, Chancery No. B-2879, August 31, 1962; and NAACP 
v. Harrison, Cir. Ct. Richmond, Chancery No. B-2880, Au­



35

gust 31, 1962 (Chapter 35). Judge Soper in NAACP v. 
Patty, supra, said that these three laws “ are new in the 
statute law of the state and are essential parts of the plan 
which deprives the colored people of the state of the as­
sistance of the Association and the Fund in the assertion 
of their constitutional rights” (159 F. Supp. at 530). If 
further demonstration of this truism is needed, it is sup­
plied by the acknowledged (R. 56) statement of Delegate 
Thompson that with “ ‘this set of bills . . .  we can bust 
that organization [NAACP] wide open,’ ” Scull v. Virginia, 
supra at 347.

The General Assembly provided for the enforcement of 
these three laws by creating two committees: (1) The Com­
mittee on Offenses Against the Administration of Justice 
and (2) The Committee on Law Reform and Racial Activi­
ties. Their respective purposes were as follows:

1. “ To investigate and determine the extent and man­
ner in which the laws of the Commonwealth relating 
to the administration of justice are being enforced 
and . . . specifically [to] direct its attention to the 
administration and enforcement of those laws relat­
ing to champerty, maintenance, barratry, running 
and capping and other offenses of any nature relat­
ing to the promotion or support of litigation by 
persons who are not parties thereto.” (Acts of 
Assembly, 1956, Ex. Sess., Chapter 34);

2. To determine “ the need, or lack of need, for legis­
lation which would assist in the investigation of 
[corporations, organizations, associations and other 
like groups who or which seek to influence, en­
courage or promote litigation relating to racial ac­
tivities in this State]” , to determine “ the need, or 
lack of need, for legislation redefining the taxable 
status of such corporations, associations, organiza­
tions . . . and further defining the status of dona­
tions to such organizations . . . from a taxation



36

standpoint” , and to determine “ the effect which in­
tegration or the threat of integration could have on 
the operation of the public schools in the State or 
the general welfare of the State and whether the 
laws of barratry, champerty and maintenance are 
being violated in connection therewith” (Acts of 
Assembly, 1956, Ex. Sess., Chapter 37).

In 1958, upon the expiration of these two committees, 
legislation creating the present Committee was enacted, 
providing in part:

“ All transcripts of proceedings before, and the records 
of the Legislative Committee created by Chapter 37 of 
the Acts of Assembly of the Extra Session of 1956 and 
all transcripts of proceeds before, and records of, the 
Joint Committee created by Chapter 34 of the Acts of 
Assembly of the Extra Session of 1956 are hereby 
made subject to the inspection and use of the Joint 
Committee created by this act” (Acts 1958, Ch. 373, 
Sec. 9; Code of Virginia § 30-50).

Further, the section provides:
“ All powers, privileges and rights of the Committee 
created by Chapter 34 of the Acts of Assembly of the 
Extra Session of 1956 are hereby restored and con­
ferred upon the Committee created by this act” (Code, 
§ 30-50).

The present Committee Avas given specific directions. The 
similarity of these to the directions to the earlier commit­
tees is indicated by italicizing the common words and ideas 
of the laws involved, viz. :

1. to “ investigate and determine the extent and man­
ner in which the laws of the Commonwealth are 
being observed, administered and enforced and [to] 
specifically direct its attention to the observance



37

and to the methods and means of administration 
and enforcement of those laws, whether statutory 
or common law, relating to champerty, mainte­
nance, barratry, running and capping and other 
offenses of like nature relating to the promotion 
or support of litigation by persons who are not 
parties thereto” [Acts, 1958, Ch. 373, § l (a ) ,  Code 
of Virginia § 30-42(a )].

and
2. to “ investigate and determine the extent and man­

ner in which the laws of the Commonwealth relating 
to State income and other taxes are being ob­
served by, and administered and enforced with re­
spect to, persons, corporations, organizations, as­
sociations and other individuals and groups who or 
which seek to promote or support litigation to which 
they are not parties contrary to the statutes per­
taining to champerty, maintenance, barratry, run­
ning and capping and other offenses of like nature” 
[Acts, 1958, Ch. 373, § 1(b), Code of Virginia 30-42 
(b)].

The testimony of the witness Thomson that there was 
“ very definitely so,” a liaison between the two 1956 com­
mittees (R. 51), the fact that Delegates Moncure and Thom­
son served on the 1956 Law Reform and Racial Activities 
Committee and, after its expiration, on the present Com­
mittee on Offenses Against the Administration of Justice 
(R. 54), the fact that Senator (formerly Delegate) Stone 
served on both the 1956 and the instant Committee on Of­
fenses Against the Administration of Justice (R. 59), and 
the above quoted legislative directive of §9 of Chapter 373 
of the Acts of 1958 (Code §30-50), all show that the estab­
lishment of the present Committee was but a follow-up 
step in the comprehensive legislative attempt to stifle the 
NAACP and the Fund.



38

That the Committee acted in the spirit of the Legisla­
ture’s purpose is manifested by its 1959 Report, admitted in 
evidence as Exhibit C (R. 53). Although the report sug­
gests that the Committee “ investigated a number of com­
plaints . . . concerning the solicitation of business by law­
yers, most of these . . .  in the field of personal injury cases” 
and that “ the Committee has found cases in which collec­
tion agencies have used papers [simulating court docu­
ments] in clear violation of the statute,” the report does 
not identify or even mention any person or group other 
than those connected with these organizations as having 
been brought within the scope of the Committee’s investi­
gation, except to say that, following the directive of H. J. R. 
50 of the 1958 General Assembly, the Virginia State Bar 
has brought an injunctive proceeding against Bernard M. 
Savage and the Brotherhood of Railroad Trainmen. As a 
whole, the report merely reflects the Committee’s unrelent­
ing determination to pry into the affairs of the NAACP, 
the Conference, the Legal Defense Fund, and those whose 
rights these organizations have sought to vindicate through 
school desegregation litigation, and to force disclosure of 
private information which these organizations have a clear 
right to keep private. Cf. National Association for the 
Advancement of Colored People v. Alabama, 357 U. S. 449, 
466, 78 S. Ct. 1163, 2 L. ed. 2d 1448 (1958).

The foregoing account of the background against which 
§30-42 was passed demonstrates that the purpose of the 
statute was to obstruct the activities of the NAACP and 
the Fund.7 It is well known, and a fact of which this Court

7 The activities of the Committee operating under the statute 
offer no reason for doubt that this was the Legislature’s intention. 
No member of the Committee expressed any doubt that receipt 
of the names sought by the interrogatory would be followed by 
publication and exposure to reprisal of those who contribute to and 
participate in the work of the Fund. While it was explained that 
publication must be preceded by a decision of the chairman or of 
a majority of the Committee members (R. 116-117), there were 
no assurances that such authorization would not be forthcoming 
if the names were obtained.



39

can take judicial notice, that these organizations participate 
in almost all litigation undertaken in Virginia to effect com­
pliance with the Supreme Court’s ruling on segregation in 
public schools. Harassment of these organizations is a 
major step toward the goal of “massive resistance” to 
school desegregation.

A statute which impairs individual freedom without hav­
ing any reasonable relationship to the attainment of a 
valid legislative purpose violates due process of law as 
secured by Section 11 of the Virginia Constitution and the 
Fourteenth Amendment to the United States Constitution. 
See Bolling v. Sharpe, 347 U. S. 497; Detroit Bank v. United 
States, 317 U. S. 329; Currin v. Wallace, 306 U. S. 1; Stew­
ard Machine Co. v. Davis, 301 U. S. 548. Section 30-42 
aimed at destroying the effectiveness of the NAACP and 
the Legal Defense Fund, interferes with freedom of speech 
and of association. See NAACP v. Button, 371 U. S. 415. 
In addition, obstruction of the Legal Defense Fund’s ef­
forts to achieve desegregation in the public schools denies 
the equal protection of the laws under the Fourteenth 
Amendment to the United States Constitution. Brown v. 
Board of Education, supra.

Salvation of §30-42 requires some showing of a valid 
legislative purpose toward which the investigation might 
contribute. Some members of the Committee indicated an 
intention to publish the names of tax offenders and send the 
information to law enforcement agencies. However, this 
merely reveals the Committee’s failure to comprehend the 
difference between the investigative function of a legislative 
organ and the law enforcement function of the executive 
department. A  legislative committee may not expose for 
the sake of exposure or merely seek information to aid the 
work of law enforcement agencies. It may only seek that 
information which would aid it in the job of writing legis­
lation for the achievement of a lawful governmental pur­
pose. Kilbourn v. Thompson, 103 U. S. 168; McGrain v. 
Daugherty, 273 U. S. 135; Watkins v. United States, 354



40

U. S. 178. But this Committee has made no showing of the 
type of laws that it might suggest for enactment if it ob­
tained the names of contributors to the Legal Defense Fund. 
Indeed, it is difficult to understand what valid legislative 
purpose could be attained through the use of this informa­
tion.

Assuming it was found that a substantial number of 
contributors to the Defense Fund regularly claimed im­
proper deductions on their tax returns, what could the 
Legislature do to strengthen the laws that are already on 
the books? Virginia law already attempts to forbid the 
deduction of contributions to the Legal Defense Fund. A 
representative of the tax department so testified (R. 66), 
presumably relying on Code §58-84.1. (Of course, there is 
much reason to doubt the constitutionality of §58-84.1 in 
light of Speiser v. Randall, 357 U. S. 513; see Argument 
VII, infra.) The law already requires all taxpayers to list 
the recipients of contributions which are claimed as de­
ductions. The law already directs local tax commissioners 
to check each tax return and disallow all improper deduc­
tions and some returns are checked again at the central 
office. Thus, more than adequate administrative machinery 
already exists to effectuate the Legislature’s original pur­
pose of excluding the Legal Defense Fund from the class 
of organizations to which contributions may be deducted. 
Even assuming that the Committee might come up with 
some constructive legislative ideas, the total amount of 
money involved is so insubstantial as to reveal the ab­
sence of any purpose other than to expose contributors. 
“ The mere semblance of legislative purpose would not 
justify an inquiry in the face of the bill of rights.” Watkins 
v. United States, supra.

Finally, if the Committee can be found to have any valid 
purpose at all, the terms of the statute limit that purpose 
to the tax affairs of persons who have violated the laws 
against barratry, maintenance, running and capping, and 
the like. However, Virginia’s substantive laws on these



41

subjects have uniformly been ruled unconstitutional, at 
least as applied to the XAACP and similar organizations. 
Thus, the Committee’s area of jurisdiction has been ir­
revocably removed by the courts and it can serve no pur­
pose at all.

VI.

The Exclusion of House Documents Nos. 8 and 9 
From Evidence Was Erroneous and in Violation of the 
Due Process and Equal Protection Clauses of the Four­
teenth Amendment to the United States Constitution, as 
Denying the Legal Defense Fund the Opportunity to 
Prove the Improper Legislative Purpose.

[See Assignment of Error No. 4  and Question Involved 
No. VII.]

The Report of the original Committee on Offenses 
Against the Administration of Justice (1957) (House 
Document No. 8) was offered as Exhibit A  (R. 53). That 
document consists of 22 pages and 12 appendices. Ap­
pendix 1 (pp. a-1 through a-5) indicates the offenses which 
the Committee considered to be within its purview, refer­
ence being made, inter alia, to Chapter 35 and Chapter 33 
(Code 54-78 et seq.) of the Acts of Assembly 1956 Extra 
Session. Appendix 2 (p. a-6) lists fourteen “ Court ap­
pearances of Committee on Administration of Justice,” 
each of which involved NAACP or an affiliate. Appendices 
3 through 12 (pp. a-7 through a-48) relate only to NAACP, 
the Conference, and the Legal Defense Fund. The body of 
the report shows the preoccupation of the committee with 
activities of these organizations, less than one page being 
devoted to “ Practices of Others.”

The report of the Committee on Law Reform and Racial 
Activities (1957) (House Document No. 9) was offered as 
Exhibit B (R. 53). The account of the committee’s activi­
ties begins on page 7. Except for one paragraph on that



42

page to show that the activities of the Defenders of State 
Sovereignty and Individual Liberties were not considered 
as being within the scope of the committee’s proper in­
quiries, the entire report deals with NAACP and its af­
filiates and the Legal Defense Fund.8

Code §30-50 gives the present Committee access to the 
records of the previous committees and confers upon it 
all “ powers, privileges and rights” of the previous com­
mittees. Establishment of the present Committee by an 
Act containing §30-50 implies not only approval of the 
work of the previous committees but a desire that their 
work be continued. Thus the excluded reports show the 
character of investigations the legislature wanted the pres­
ent Committee to conduct and are particularly relevant to 
a showing of the General Assembly’s purpose in establish­
ing the present Committee.

The exclusion of this evidence deprived the Legal De­
fense Fund of valuable evidence in support of its claim 
that the statute creating the present Committee was de­
signed to interfere with the organization’s activities. The 
exclusion of evidence offered to prove violation of a con­
stitutional right violates the settled rules of evidence and 
constitutes a denial of due process of law. See Washington 
ex rel. Oregon R. & N. Co. v. Fairchild, 224 U. S. 510. 
Cf. NAACP v Alabama ex rel. Patterson, 357 U. S. 449; 
Williams v. Georgia, 349 U. S. 375.

8 Upon the recommendations contained in these committee re­
ports, the General Assembly passed House Joint Resolution No. 50 
of the 1958 General Assembly, authorizing the Virginia State Bar 
to engage in further harassment of the Fund and a cooperating 
attorney.



43

vn.
The Committee’s Inquiry Arbitrarily Singles Out Con­

tributors to the Legal Defense Fund and Similar Or­
ganizations for Tax Investigation in Violation of the Due 
Process and Equal Protection Clauses of the Fourteenth 
Amendment to the United States Constitution.

[See Assignment of Error No. 6 and Question Involved 
No. VIII.]

Where the law as written or as applied singles out a 
class for different treatment not based on some reasonable 
classification, the guarantees of the Constitution have been 
violated. In context similar to that here this Court has 
said:

Equal protection of the laws, guaranteed under the 
Fourteenth Amendment, does not preclude a State from 
resorting to classification for purposes of legislation, 
but such classification must be reasonable and not arbi­
trary and rest on some ground of difference or dis­
tinction which bears a fair and substantial relation to 
the subject or object of legislation, so that all persons 
similarly situated shall be treated alike. NAACP v. 
Harrison, 202 Va. 142.

As construed and applied by the Committee, §30-42 (b) 
makes a distinction between contributors to organizations 
supporting or promoting litigation to which they are not 
parties on the one hand and all other citizens of Virginia 
on the other hand. Citizens in the former class are sub­
jected to the special burden of a legislative investigation 
of their tax affairs by a hostile legislative Committee. In 
these days of complicated tax laws and tax returns, an in­
vestigation of one’s tax affairs can entail the loss of con­
siderable time and inconvenience whether or not violations 
of the law are ultimately discovered. No reason appears



44

for visiting this burden upon the one narrow class but not 
the generality of citizens.

Even if it is assumed that some organizations promoting 
litigation to which they are not parties do engage in some 
offenses against the administration of justice, there is no 
reason to believe that individual contributors to such or­
ganizations are in any way involved in such practices. 
More significantly, there is no reason whatever to believe 
that individual contributors to such organizations violate 
the tax laws or are more likely to violate the tax laws than 
other persons. Without some showing along these lines, 
the legislature’s classification must be deemed arbitrary.

In fact, the only persons threatened with tax investiga­
tion are contributors to the NAACP and the Legal Defense 
Fund. As was shown above, the real reason for the clas­
sification was the unpopularity of these organizations’ be­
liefs and objectives, but this cannot form the basis for a 
legislative classification. Whether or not the Legislature 
contemplated a limiting of the Committee’s investigations 
to these organizations, the conduct of the Committee in so 
limiting its inquiries constitutes a violation of the Four­
teenth Amendment, for, as the Supreme Court held in 
Yick Wo v. Hopkins, 118 U. S. 356, 373-74 (1886):

Though the law itself be fair on its face and im­
partial in appearance, yet, if it is applied and admin­
istered by public authority with an evil eye and an 
unequal hand, so as practically to make unjust and 
illegal discriminations between persons in similar cir­
cumstances, material to their rights, the denial of equal 
justice is still within the prohibition of the Constitu­
tion.

The Committee’s action in singling out the contributors 
to the Fund for tax investigation cannot be justified by the 
fact that Code §58-84.1 makes contributions to organizations 
which support or maintain litigation to which they are not 
parties non-deductible for income tax purposes. For this



45

statute itself seems plainly invalid under the principles 
recognized in Speiser v. Randall, 357 U. S. 513. In Speiser, 
supra, the court invalidated a California law which denied 
a tax exemption to persons who refused to give an oath that 
they did not advocate overthrow of the Government. The 
Court ruled the law invalid on the ground that it violated 
due process by unfairly shifting the burden of proof and 
persuasion to the taxpayer. The Court assumed, without 
deciding, that California could deny tax exemption for 
speech which it might make criminal (357 U. S. at 520). 
However, the denial of a tax advantage under Code §58-84.1 
is on the basis of an activity which this Court has held 
cannot be made criminal, that is, the support of litigation 
to which one is not a party. See NAACP v. Harrison, 202 
Ya. 142, 116 S. E. 2d 55 (1960). Thus, the following princi­
ples stated in Speiser seem plainly controlling:

It cannot be gainsaid that a discriminatory denial 
of a tax exemption for engaging in speech is a limita­
tion on free speech. . . .  It is settled that speech can 
be effectively limited by the exercise of the taxing 
power. Grosjean v. American Press Co., 297 U. S. 233, 
80 L. ed. 660, 56 S. Ct. 444. To deny an exemption to 
claimants who engaged in certain forms of speech 
is in effect to penalize them for such speech. Its deter­
rent effect is the same as if the State were to fine them 
for this speech. The appellees are plainly mistaken in 
their argument that, because a tax exemption is a 
‘privilege’ or ‘bounty’, its denial may not infringe 
speech. (357 U. S. at 518.)

# #  *  #  *

So here, the denial of a tax exemption for engaging in 
certain speech necessarily will have the effect of coerc­
ing the claimants to refrain from the proscribed speech. 
The denial is ‘frankly aimed at the suppression of 
dangerous ideas.’ American Communications Asso. v. 
Douds, supra (339 U. S. at 402). (Speiser, supra at 
357 U. S. 519.)



4G

In a concurring opinion Justices Douglas and Black said 
that:

In Murdock v. Pennsylvania, 319 U. S. 105, . . .  we 
stated, ‘Plainly a community may not suppress, or the 
state tax, the dissemination of views because they are 
unpopular, annoying or distasteful.’ 319 U. S. at 116. 
If the Government may not impose a tax upon the ex­
pression of ideas in order to discourage them, it may 
not achieve the same end by reducing the individual 
who expresses his views to second-class citizenship by 
withholding tax benefits granted others. When govern­
ment denies a tax exemption because of the citizen’s 
belief, it penalizes that belief. That is different only 
in form, not substance, from the ‘taxes on knowledge’ 
which have had a notorious history in the English- 
speaking world. See Grosjean v. American Press Co., 
297 U. S. 233, 246, 247, 80 L. ed. 660, 667, 56 S. Ct. 444. 
(357 U. S. at 536, concurring opinion.)

There is, therefore, no reasonable basis for the Com­
mittee’s action in singling out contributors to the Legal 
Defense Fund for tax investigation, and for requiring that 
their associational privacy be invaded. The discrimination 
against such donors is a violation of their rights under the 
Constitution.



47

vra.
Compelled Disclosure to the Committee of the Names 

of the Fund’s Contributors Would Be Contrary to Repre­
sentations Made to the United States Supreme Court in 
H arrison  v. N A A C P , 360 U. S. 167, That Laws Compel­
ling Similar Disclosures Would Not Be Enforced Until 
Their Constitutionality Had Been Finally Determined.

[See Assignment of Error No. 7 and Question Involved 
No. IX.]

Under principles of comity and equity the court below 
should have granted the motion to quash or deferred ac­
tion during the pendency of litigation in other courts on 
the issue of compulsory disclosure. The compelled dis­
closure of the names of donors of the Legal Defense Fund, 
and the members and contributors of the NAACP, has 
been the subject of litigation in Virginia for several years. 
In 1956, the General Assembly of Virginia enacted two 
registration laws compelling disclosure of the names of 
the organizations’ members and contributors and infor­
mation about their finances. See Chapters 31 and 32 of 
the Acts of the General Assembly of Virginia, Extra 
Session 1956, being §§18.1-372 to 18.1-379 and 18.1-380 to 
18.1-387, inclusive, of the Code of Virginia as amended. 
Promptly thereafter the Legal Defense Fund sued in the 
United States District Court for the Eastern District of 
Virginia to restrain enforcement of these laws.

In January 1958, the District Court held Chapters 31 
and 32 unconstitutional under the Fourteenth Amendment, 
NAACP v. Patty, 159 F. Supp. 503 (E. D. Va. 1958). On 
appeal, the Supreme Court vacated the judgment and re­
manded instructing the District Court to retain jurisdic­
tion pending a construction of the laws in declaratory 
judgment proceedings in the courts of Virginia, Harrison 
v. NAACP, 360 U. S. 167.



48

In the District Court and in the Supreme Court counsel 
representing the Attorney General of Virginia and various 
Commonwealth’s attorneys agreed that no action to en­
force the several laws involved would be taken during 
the full pendency of the lawsuit (159 F. Supp. at 534; 
360 U. S. at 178-179). The Supreme Court applied the 
doctrine of equitable abstention expressly relying upon 
assurances that the parties to the case would honor this 
arrangement, and the assumption that other officials of 
Virginia would honor it also. At 360 U. S. 178-179 the 
Court said:

Because of its findings, amply supported by the 
evidence, that the existence and threatened enforce­
ment of these statutes worked great and immediate 
irreparable injury on appellees, the District Court’s 
abstention with respect to Chapters 33 and 36 pro­
ceeded on the assumption “ that the defendants will 
continue to cooperate, as they have in the past, in 
withholding action under the authority of the statutes 
until a final decision is reached. . . . ” 159 F. Supp. at 
534. In this Court counsel for the appellants has 
given similar assurances with respect to the three 
statutes presently before us, assurances which we 
understand embrace also the intention of these ap­
pellants never to proceed against appellees under any 
of these enactments with respect to activities engaged 
in during the full pendency of this litigation. While 
there is no reason to suppose that such assurances will 
not he honored by these or other Virginia officials not 
parties to this litigation, the District Court of course 
possesses ample authority in this action, or in such 
supplemental proceedings as may be initiated, to pro­
tect the appellees while this case goes forward. [Em­
phasis supplied.]

Plainly, the Committee inquiry seeks information that 
Chapters 31 and 32 also required to be disclosed, i.e., the



49

sources of the Fund’s income. Compare §§18.1-373 and 
18.1-382, Code of Virginia, with the interrogatories herein.

At the time the court below decided this case, the issue 
as to whether similar disclosures could be compelled con­
sistent with the Constitution of Virginia and the Four­
teenth Amendment to the Constitution of the United States 
was pending in the Circuit Court of the City of Richmond. 
Suits involving that issue were filed in the Circuit Court 
by the NAACP and the Fund in 1959 after the opinion in 
Harrison v. NAACP, 360 U. S. 167. Those cases were 
eventually decided in an opinion rendered by Judge Hening 
on August 31, 1962. NAACP Legal Defense and Educa­
tional Fund, Inc. v. Harrison, 7 Race Rel. L. Rep. 864; 
judgment at 7 Race Rel. L. Rep. 1216. The Circuit Court 
decided that both statutes requiring disclosure of donors 
and contributors were invalid as applied to the Fund (and 
as applied to any activities of the NAACP except alleged 
possible lobbying and causing violence). The Circuit Court 
opinion relied upon NAACP v. Harrison, 202 Va. 142; 
NAACP v. Alabama, 357 U. S. 449, and other similar cases 
in striking down Ch. 31, Acts Ex. Sess. 1956 (Code §18.1- 
372, et seq.). This law required disclosure of donors’ 
names of any organization which solicited funds to finance 
legal proceedings in which the organization was not a 
party and had no pecuniary right or liability (Code §18.1- 
373). The Attorney General of Virginia and the other de­
fendants did not appeal the adverse decision of the Circuit 
Court.

The principle of comity by which the court first ac­
quiring jurisdiction is given priority over a subject matter 
was developed to avoid just such conflicts between courts 
of coordinate jurisdiction. See 14 Am. Jur., Courts, §243, 
et seq. The principle also avoids the vexation of parties 
by multiple litigation of the same issue, an historic ob­
jective of equity. It is submitted that the Committee’s 
present effort to invoke the aid of the Court to compel 
disclosure of information, even though the same informa­



50

tion has been held constitutionally privileged by the 
Courts, is a vexatious harassment of the Legal Defense 
Fund which the Courts should not assist. It is manifestly 
unfair to require the Fund to continue to litigate against 
a legislative committee an issue previously settled only 
after prolonged litigation against the State’s Attorney 
General.

CONCLUSION

It is respectfully submitted, that for the reasons stated 
in this brief, the judgment of the court below is in error 
and should be reversed, and that the summons and in­
terrogatory complained of should be quashed.

Respectfully submitted,

L awrence D ouglas W ilder 
3026 P Street 
Richmond, Virginia

Jack Greenberg 
James M. Nabrit, III 
M ichael M eltsner 
F rank H. H effron 

10 Columbus Circle 
New York 19, New York
Attorneys for Plaintiff in Error



38